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Wednesday, April 10, 2013

Heritage Foundation’s Unhelpful CFATS Comments

Yesterday the Heritage Foundation’s Jessica Zuckerman has
another article about the problems with the CFATS program that is almost as
helpful as her earlier article that I
reviewed at some length. This time she builds on excerpts from the most
recent GAO report to continue her campaign to making “CFATS a truly risk-based
and cost effective program”. Unfortunately her campaign is long on criticism
and short on creative suggestions.

CFATS Problems

The folks at ISCD certainly have their problems that they
have been and continue to deal with in the administration of the CFATS program.
I have discussed shortcomings in great deal over the last couple of years and I
like to think that I have been proactive in suggesting ways in which the
problems could be dealt with. But, everyone needs to take a step back and
really look at what the program has accomplished:

• Regulations were written,
published, commented upon and re-written in just over six months; a remarkable
accomplishment from an organization that had never regulated the area before.

• An innovative and efficient
method of data collection was developed, tested in real world environments,
modified and publicly deployed in less than a year.

• Data was collected from over
40,000 chemical facilities (chemical in the broadest sense of the term),
analyzed and evaluated to winnow the number of regulated facilities down to
less than 4,000 facilities currently covered under the program.

• An inspection force was started
from scratch in a field that had never been regulated with people that for the
most part had never worked in or around the regulated industry.

Now there have been some administrative problems and those
appear to have been addressed, at least in part. The problems with the risk
assessment used to assign facilities to tiers has been identified, clarified
and work has been started on fixing the situation. It will take time to do
properly, time the Department was never given in the first place.

SSP Authorizations

The problem that Ms. Zuckerman hits on the hardest (as have
most other critics) is the slow pace of the site security plan approval
process. What the Department has not been at all proficient in explaining is
that while there have been (and certainly may continue to be) inefficiencies in
the procedures that they use to process the site security plan documentation,
the evaluation process must be slow. That is due to the fact that the
Department is prohibited from requiring any specific security measure to be in
place to approve a site security plan. This means that a series of subject
matter experts must look at not only the details of the plan, but also how all
of those details mesh together in totality to determine if there is an adequate
level of security at the facility.

To significantly speed up the process ISCD really only has
limited number of unacceptable solutions. The simplest it to give the facility
every benefit of the doubt and approve all submitted plans. If that is the
option to be taken, ISCD could just close its doors because there would be no
need to have any regulators in place. Of course we would soon be back at the
days immediately after the 9/11 attacks when chemical security was an
inadequate hodge-podge of activities undertaken in the name, but not the
practice of security.

The next simplest measure would be to ignore the larger
picture and just look at the details of the plan and reject all plans where the
details do not meet some definition of ‘secure’. This would be contrary to the
letter and spirit of the CFATS authorization language. And facility owner would
be raising all sorts of Cain because of the government interference in their
operations.

There are all sorts of varying degrees of these two extremes
that would speed up the SSP authorization process, but they would all be
contrary to the intent of the law as written and not really contribute much (if
anything) to securing these potentially dangerous chemicals in our communities.

Personnel Surety
Program

Ms. Zuckerman is correct that the lack of a terrorist links
screening tool for CFATS is leading to provisional approvals of site security
plans; exactly the type of flexibility that she asks the Department to build
into the program. The previous leadership at ISCD certainly did attempt to
overstep their authority in expanding the intent of the PSP. Again, that
problem is being corrected and there have been some interesting modifications
that appear to be moving towards the program objectives in a fairly effective
manner.

Risk-Based Approach

In both of her CFATS discourses Ms. Zuckerman has called for
returning CFATS to a ‘truly risk-based approach’. I’m more than a little
confused because the SSP requirements outlined in the Risk-Based Performance
Standards guidance document certainly seem to me to be risk-based. It would be
helpful if she were to provide some concrete example of what types of changes
she would like to see made to the program instead of her vague generalities.

Generalities are easy; concrete proposals though are what
policy discussions are really all about. For example two years ago, I
published a detailed proposal for re-writing the CFATS program into law.
Pros and cons of the details can be debated and improved upon. Light weight
intellectual sniping accomplishes nothing but obstructing the conversation.

The really interesting thing about the Zuckerman complaints
is that they are coming from an academic with no apparent connection to the
regulated industry. If she did understand or even talk with the chemical
industry she would find that there is general support for the current CFATS
program; support with a healthy dose of constructive criticism.

Fortunately, ISCD appears to be paying more attention to the
regulated community than they do the isolated academics like Ms. Zuckerman.

About Me

I spent 15 years in the US Army as an Infantry NCO. After getting out of the Army I started working in the chemical industry, getting my BSc Chemistry degree while working as a technician. I spent 12 years working as a process chemist in a specialty chemical company. Most recently I worked as a QA/R&D Manager in a specialty chemical manufacturing facility. Currently I am working as a freelance writer.